SARABJIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) APPELLANT Sarbjit Singh faced trial under Ss. 452, 302 and 307 of the Indian Penal Code and his brother Gurnam Singh faced trial under the said Sections read with S. 34 of the Indian Penal Code before the Sessions Judge, Amritsar, who after trial convicted Sarbjit Singh under S. 302 of the Indian Penal Code, sentenced him to imprisonment for life, to pay a fine of Rs. 2,000/- and in default to further undergo Rigorous Imprisonment for six months; to undergo Rigorous Imprisonment for one year, to pay a fine of Rs. 200/- and in default to further undergo Rigorous Imprisonment for two months under S. 452 of the Indian Penal Code and; to undergo Rigorous Imprisonment for two years, to pay a fine of Rs. 500/- and in default to further undergo Rigorous Imprisonment for four months under S. 307 of the Indian Penal Code. The substantive sentences of imprisonment were ordered to run concurrently. But the learned Sessions Judge acquitted Gurnam Singh. Aggrieved by the conviction and sentence Sarbjit Singh has come forward with this appeal. The State has not filed any appeal against the acquittal of Gurnam Singh.

(2.) THE case of prosecution is as follows :-THE accused are neighbourers of the complainant party. On 16-11-1991 at about 12 noon Sarbjit Singh accused/appellant was quarrelling with his mother Sarbjit Singh Kaur. Balwinder Singh the brother of the complainant-Sukhwinder Singh intervened and separated them and, therefore, accused Sarbjit Singh and Gurnam Singh took ill of it as Balwinder Singh had no business to interfere in their domestic affairs.3-4. On the same day at about 6 p.m. Balwinder Singh and Sukhwinder Singh complainants were taking meals in their house. An electric bulb was shedding light in the courtyard of their house. At that time accused Sarbjit Singh armed with a dagger and accused Gurnam Singh bare handed came to their house under the influence of liquor and started hurling abuses. Balwinder Singh questioned their conduct. Accused Gurnam Singh exhorted that Balwinder Singh should be taught a lesson. Accused Sarbjit Singh gave two blows with the dagger to Balwinder Singh which fell on the portion above the testicles and left thigh. THE complainant Sukhwinder Singh stepped forward to save him and accused Gurnam Singh took Sukhwinder Singh into his grip, and accused-Sarbjit Singh gave two blows with the dagger to the complainant-Sukhwinder Singh which fell on his left thigh and the left nipple. On the alarm raised by the injured. Sukhwinder Kaur the wife of Balwinder Singh, Manjit Kaur the wife of Sukhwinder Singh, and a neighbour-Jasbir Singh came there. THE accused ran away with the weapon. Manjit Kaur and Jasbir Singh took the injured to the hospital at Ajnala where the injured were given first aid and then referred to Guru Nanak Dev Hospital, Amritsar. Balwinder Singh died later on.5. Sukhwinder Singh (PW-7) deposed before the trial court about the incident that took place at about 12 noon on 16-11-1991 and also about the occurrence at 6 p.m. as detailed above. His wife Manjit Kaur (PW-8) also deposed about the incident as well as the occurrence. According to her, in the evening at about 6 p.m. when she was serving meals to Balwinder Singh and her husband-Sukhwinder Singh in the courtyard of their house, the electric bulb was on, and accused-Sarbjit Singh and Gurnam Singh, who had consumed liquor, came to their house. She deposed that Sarbjit Singh was armed with dagger while Gurnam Singh-accused was bare handed and both of them hurled abuses, and Balwinder Singh requested them not to do so. She further deposed that accused-Gurnam Singh exhorted and Sarbjit Singh dealt two blows with his dagger to Balwinder Singh, which fell on the upper side of the pelvic region and on the left thing. According to her when Sukhwinder Singh stepped forward to save him, Gurnam Singh caught hold of her husband-Sukhwinder Singh while, accused-Sarbjit Singh dealt two blows to him which fell on the left side of his chest near nipple, and on the left thigh. She also deposed that she and Jasbir Singh took Sukhwinder Singh and Balwinder Singh to the hospital at Ajnala and then to Guru Nanak Dev Hospital, Amritsar. Both Sukhwinder Singh and his wife (PWs-7 and 8) stated that Balwinder Singh died after 35 or 36 days.6. Dr. Jaimal Singh (PW-3) of Guru Nanak Dev Hospital, Amritsar stated that Balwinder Singh was admitted in an injured condition on 17-11-1991 and remained under treatment till 23-12-1991 on which date he died. Tarlok Singh (PW-11), Assistant Sub-Inspector of the concerned Police Station at Ramdas, stated in his evidence that on receipt of the wireless message about Balwinder Singh and Sukhwinder Singh having been admitted in injured condition in Guru Nanak Dev Hospital, he reached the said hospital and gave an application (Ex. PT) before the doctor to get his opinion regarding the condition of Balwinder Singh and the doctor informed that the injured was not fit to make statement (vide endorsements Ex. PN dated 17-11-1991 and Ex. PN/1 dated 18-11-1991). He also stated that on his application (Ex. PO).Sukhwinder Singh was also declared unfit to make a statement on 17-11-1991 vide Ex. PO/1. According to PW-11, on 18-11-1991 when Sukhwinder Singh was declared fit to make his statement, he recorded the statement of Sukhwinder Singh (Ex. PQ), made his endorsement Ex. PQ/1, and sent it to the Police Station on which, the formal FIR Ex. PQ/2 was registered. Dr. Kanwaljit Singh (PW-6) of Guru Nanak Dev Hospital, Amritsar, deposed that on 17-11-1991 and 18-11-1991 on the application of A.S.I. Tarlok Singh, he declared Balwinder Singh unfit to make statement vide his endorsements Ex. PN and PN/1. He also stated that on the application Ex. PO he declared Sukhwinder Singh unfit to make a statement, and that on 18-11-1991 he declared Sukhwinder Singh fit to make statement at 7.45 a.m. vide his endorsement Ex. PO/2.7. ASI Tarlok Singh (PW-11) stated that he inspected the scene of occurrence, prepared rough site plan and conducted a raid on the house of the accused, but, they were not found.8. Dalip Singh (PW-10), the Sarpanch of village Thoba during 1991, stated in his evidence that on 21-11-1991 accused Sarbjit Singh and his mother came to his house and mother of Sarbjit Singh informed him that her son had given a blow with a knife to Balwinder Singh and requested that he (Dalip Singh) be produced before the police. According to him, he told that he was busy in the sowing of wheat crop and will take him to the police after two days. He stated that neither Sarbjit Singh and nor his mother came thereafter, and that his statement was recorded by the police on 23-11-1991. ASI Tarlok Singh (PW-11) also stated about recording the statement of Dalip Singh.9. Dr. N. K. Aggarwal (PW-2) deposed that on 26-11-1991 at 9 a.m. he examined Sukhwinder Singh and found the following injuries on his person :-1. A healthy healed wound 1 cm x .5 cm on the lower part of the left nipple.2. A healthy healed wound 2.5 cm x 1 cm on the outer aspect of the middle of the left thigh.PW-2 also stated that at the same day at 9.30 a.m., he examined Balwinder Singh and found that hospital dressing was present on the lower part of the abdomen.PW-2 Dr. N. K. Aggarwal stated that on receipt of operation notes, this injury was declared as dangerous to life.10. ASI Tarlok Singh (PW-11) also stated that he enquired about the injuries on Balwinder Singh and the doctor informed him that the injuries were dangerous to life, and after getting the medico-legal reports of Balwinder Singh and Sukhwinder Singh, he altered the offence to one under S. 307 of the Indian Penal Code.11. Dr. Sunil Kumar (PW-9), Medical Officer of Guru Nank Dev Hospital, Amritsar, stated that on 28-11-1991 on the application (Ex. PS) made by ASI Tarlok Singh (PW- 11), he gave his opinion that Balwinder Singh was unfit to make a statement (Ex. PS/1). ASI Tarlok Singh also stated that on 30-11-1991, he arrested the accused Sarbjit Singh from Bus Stop Thoba and on interrogation Sarbjit Singh made a disclosure statement (Ex. PK) in pursuance of which the dagger-Ex. P1 was recovered under recovery memo Ex. PM. Santokh Singh (PW-5), the then Head Constable of Police Station Ramdas, also deposed about the arrest of accused-Sarbjit Singh, the disclosure statement and the recovery of the dagger.12. Dr. Balwinder Singh (PW-4), Medical Officer, Guru Nanak Dev Hospital, Amritsar, stated that on 2-12-1991, on the application (Ex. PJ), he have his opinion (Ex. PJ/1) to the effect that Balwinder Singh was fit to make a statement. ASI Tarlok Singh (PW-11) also stated about this and further deposed that he had recorded the statement of Balwinder Singh.13. ASI Tarlok Singh (PW-11) stated that on 23-12-1991 at about 7 p.m. he received information about the death of Balwinder Singh and on 24-12-1991 he converted the offence to one under S. 302 of the Indian Penal Code. Dr. Sat Pal Garg (PW-1), Medical Officer, stated in his evidence that on 24-12-1991 at about 2-50 p.m. he conducted the post-mortem examination of Balwinder Singh. According to him, there was surgical dressing on the front of abdomen, that on removing the surgical dressing, there was a gaped wound of 20 cm x 9 cm on the front of abdomen, with foul smell from the wound, and greenish discharge at the site. Two rubber tubes were coming out of the upper part of the wound, one of which was connected with the pump. On opening the abdomen, he found rank pus in the abdominal cavity with greenish discharge. Foul smell was coming out. He opined the cause of death as septicaemia which, according to him, was sufficient to cause death in the ordinary course of nature. THE probable time that had elapsed between injury and death was about 39 days. THE post mortem report is Ex. PA.14. After considering the materials placed before him, the learned Sessions Judge came to the conclusion that the case against the accused-Gurnam Singh was not proved and acquitted him; but convicted and sentenced accused-Sarbjit Singh as mentioned above.15. We have heard the counsel and perused the records. THE learned counsel for the appellant-Sarbjit Singh after making an unsuccessful attempt to question the conviction of appellant Sarbjit Singh and finding himself unable to sustain his contention, restricted his argument with regard to the offences that were committed by Sarbjit Singh and the sentence imposed upon him. On a perusal of the entire materials and on a consideration of the arguments advanced by both the sides, we also find that the complicity of accused Sarbjit Singh in the commission of the offences under Ss. 307 and 452, IPC is not open to doubt, even though the question arises as to whether he is guilty of the offence under S. 302, IPC in view of the death of Balwinder Singh, about which we will deal with later. PW-7 Sukhwinder Singh is the witness, who is injured in the occurrence in question, and his wife Manjit Kaur was serving meals to both Sukhwinder Singh (PW-7) and Balwinder Singh (deceased) at the time of the occurrence. THEy have both stated about the incident that took place at noon of the day of occurrence namely 16-11-1991, and also about the occurrence at 6 p.m. on the same day when Sukhwinder Singh and Balwinder Singh were injured by the accused-Sarbjit Singh with a dagger. THEir evidence shows that at noon, accused Sarbjit Singh was quarrelling with his mother and Balwinder Singh, who had no business to interfere, did interfere and thereby earned the ill-will of accused-Sarbjit Singh. THErefore, on the evening at about 6 p.m. when Manjit Kaur (PW-7) was serving meals to Balwinder Singh and Sukhwinder Singh (complainant) at the courtyard of their house, accused-Sarbjit Singh, armed with a dagger, had gone there in an intoxicated condition and abused Balwinder Singh. When Balwinder Singh questioned it, he gave two blows with the dagger to Balwinder Singh which fell on the upper side of pelvic region and left thigh of Balwinder Singh. Sukhwinder Singh who tried to save Balwinder Singh was also given two blows with dagger by accused-Sarbjit Singh and these injuries fell on the left side of the chest, near the nipple, and the left thigh of Sukhwinder Singh. Both PW-7 Sukhwinder Singh and his wife Manjit Kaur have spoken about this occurrence and the cross-examination of these witnesses has not yielded anything material to discredit their evidence. Sukhwinder Singh, who is injured in the occurrence and PW-8, who was serving meal at the time of the occurrence to the injured, were natural witnesses and as pointed out earlier, there is nothing to disbelieve their testimony. THE medical evidence, to which we have already referred, also lends support to the case of the prosecution that Sarbjit Singh had dealt the blows with dagger to both Balwinder Singh and Sukhwinder Singh and caused injuries to them.16. So, we find that accused Sarbjit Singh has committed the offence under S. 452, Indian Penal Code. He has dealt a blow on the chest of Sukhwinder Singh, which is vital part. This injury he had caused when Sukhwinder Singh attempted to intercede and save his brother Balwinder Singh. THErefore, we find that the conviction of accused Sarbjit Singh under S. 307, IPC, has also to be sustained.17. So far as Balwinder Singh is concerned, we find that accused Sarbjit Singh had no strong motive or intention to kill him. Since he had interfered in the domestic affairs of accused Sarbjit Singh, the latter felt that the interference was uncalled for. THErefore, on the evening of the same day, accused Sarbjit Singh in an intoxicated condition had only abused Balwinder Singh. It was only when Balwinder Singh questioned this, accused Sukhwinder Singh had dealt two blows, one of which fell on the abdominal and the other on the left thigh. If really the intention of accused-Sarbjit Singh was to kill Balwinder Singh then he would not have been merely abusing Balwinder Singh. He would have immediately pounced upon him and caused injuries with the dagger on a vital part like the chest, which he did not do. It is also seen that Balwinder Singh did not die as a result of shock and haemorrhage due to these injuries. He was in the hospital and was given treatment for more than a month. THE evidence of Dr. Sat Pal (PW-1) who conducted the post-mortem of Balwinder Singh shows that the death had occurred 39 days after the injury due to septicaemia. THErefore, taking into consideration all these aspects we find force in the contention of the learned counsel for the appellant that accused-Sarbjit Singh is not guilty under S. 302, IPC. We find that the accused-Sarbjit Singh is guilty under S. 326, IPC, and accordingly the conviction of the accused-Sarbjit Singh under S. 302, IPC, is set aside and he is held guilty under S. 326, IPC.18. THE result is that the appeal is allowed in part, modifying the judgement of the learned Sessions Judge in that the conviction of and the sentence passed against the appellant/accused under S. 302, IPC is set aside and instead, the appellant/accused is convicted under S. 326, IPC and sentenced to undergo rigorous imprisonment for two years. THE conviction and sentence passed against the appellant/accused under Ss. 452 and 307, IPC are maintained. THE substantive sentences are ordered to run concurrently.Appeal allowed.